Johnson v. Jamaica Hosp.

Decision Date03 July 1984
Parties, 467 N.E.2d 502 Cynthia JOHNSON et al., Respondents, v. JAMAICA HOSPITAL, Appellant.
CourtNew York Court of Appeals Court of Appeals

KAYE, Judge.

The parents of a newborn infant abducted from a hospital nursery may not recover damages from the hospital for their own emotional distress resulting from the hospital's negligence in its care of their child or in the management of its nursery. Plaintiffs' complaint for such damages should have been dismissed for failure to state a cause of action.

Plaintiffs, Cynthia Johnson and Percy Williams, are the parents of a daughter, Kawana, born June 8, 1981 in defendant Jamaica Hospital. After Cynthia's discharge, the infant remained in the hospital nursery for further treatment. When Cynthia visited on June 16, 1981--a day on which defendant had received two bomb threats--it was discovered that Kawana was missing. She apparently had been abducted from the nursery that day. She was recovered by the police and returned to her parents approximately four and one-half months later. A separate action for damages has been commenced against defendant on her behalf, which is not a part of this appeal.

Prior to Kawana's recovery, plaintiffs instituted the present action. In their first cause of action, plaintiffs allege that they are Kawana's parents, that she was in defendant's care and custody for treatment, that she disappeared during that time and defendant had been unable to account for her disappearance, and that they have suffered grief, mental torment, pain and anguish as a result of defendant's negligence in failing "to exercise due and proper care and caution in its custody, care and treatment of * * * Kawana." Plaintiffs' second cause of action, based upon the doctrine of res ipsa loquitur, repeats these averments and concludes that "the occurrence alleged would not have taken place in the ordinary course of things if the defendant had not negligently failed to use proper care in the direction, control, management and maintenance of said hospital nursery, which was under the exclusive control, direction, management and maintenance of the defendant."

After interposing an answer, defendant moved to dismiss the complaint for failure to state a cause of action. Special Term denied defendant's motion, and the Appellate Division affirmed by a divided court. Defendant was granted leave to appeal to this court by the Appellate Division, 95 A.D.2d 598, 467 N.Y.S.2d 634, which certified the question whether its order affirming the denial of defendant's motion was properly made. We now reverse.

Assuming the allegations of plaintiffs' complaint to be true (Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634), no cause of action is stated. Plaintiff parents may not recover damages from defendant hospital for any mental distress or emotional disturbances they may have suffered as a result of the direct injury inflicted upon their daughter by defendant's breach of its duty of care to her. (Howard v. Lecher, 42 N.Y.2d 109, 113, 397 N.Y.S.2d 363, 366 N.E.2d 64; Becker v. Schwartz, 46 N.Y.2d 401, 413, 413 N.Y.S.2d 895, 386 N.E.2d 807; Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 810, 436 N.Y.S.2d 871, 418 N.E.2d 386.) Although in Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843, we recently decided that damages may be recovered for such indirect "psychic injuries" in limited circumstances, plaintiffs have stated no basis for recovering under the standard set forth in Bovsun in that they have not alleged that they were within the zone of danger and that their injuries resulted from contemporaneous observation of serious physical injury or death caused by defendant's negligence.

Plaintiffs contend, and the courts below concluded, that their complaint states a cause of action because the defendant hospital owed a duty directly to them, as parents, to care properly for their child, and that it was or should have been foreseeable to defendant that any injury to Kawana, such as abduction, would cause them mental distress. There is no basis for establishing such a direct duty. This court has refused to recognize such a duty on the part of a hospital to the parents of hospitalized children (Kalina v. General Hosp., 13 N.Y.2d 1023, 245 N.Y.S.2d 599, 195 N.E.2d 309), and there is no reason to depart from that rule here.

In Kalina, the plaintiffs, an observant Jewish couple, gave express instructions to the defendant hospital that their newborn son was to be ritualistically circumcised on his eighth day by a mohel in accordance with the tenets of their religion. Instead, due to the alleged negligence and malpractice of the hospital, the baby was circumcised on his fourth day by a physician. The plaintiff parents sought recovery for their mental pain and suffering caused by the assault and battery upon their son. Special Term granted defendants' motion to dismiss the complaint (31 Misc.2d 18, 220 N.Y.S.2d 733), and we ultimately affirmed on Special Term's opinion. In that opinion, the parents of the hospitalized child were held to be "interested bystanders" to whom no direct duty was owed.

"Both of the pleadings are insufficient because the plaintiffs as individuals, apart from their status as representatives of their son, do not have a legally protected interest under these circumstances (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99). To paraphrase the language of Palsgraf, at page 341, 162 N.E. 99--the conduct of the defendants, if a wrong in relation to the son, was not a wrong in its relation to the plaintiffs, remote from the event. Rights are not abstractions but exist only correlatively with duties. Everyone who has been damaged by an interruption in the expected tenor of his life does not have a cause of action. The law demands that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him.

"The defendants here in accepting a relationship with the son assumed the risk of liability for a tortious performance to him. They did not assume any risk of liability that their acts might violate the personal sensibilities of others, be they the son's parents, his coreligionists or the community at large." (Kalina v. General Hosp., 31 Misc.2d 18, 19, 220 N.Y.S.2d 733, affd. 18 A.D.2d 757, 235 N.Y.S.2d 808, affd. 13 N.Y.2d 1023, 245 N.Y.S.2d 599, 195 N.E.2d 309.)

Jamaica Hospital owed no more of a direct duty to the plaintiff parents to refrain from causing them psychic injury than did the defendants in Kalina, Howard, Becker and Vaccaro. The direct injury allegedly caused by defendant's negligence--abduction--was sustained by the infant, and plaintiffs' grief and mental torment which resulted from her disappearance are not actionable. The foreseeability that such psychic injuries would result from the injury to Kawana does not serve to establish a duty running from defendant to plaintiffs (Albala v. City of New York, 54 N.Y.2d 269, 273, 445 N.Y.S.2d 108, 429 N.E.2d 786; Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019), and in the absence of such a duty, as a matter of law there can be no liability (De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). That sound policy reasons support these decisions is evident here, for to permit recovery by the infant's parents for emotional distress would be to invite open-ended liability for indirect emotional injury suffered by families in every instance where the very young, or very elderly, or incapacitated persons experience negligent care or treatment.

There is, similarly, no basis for establishing such a duty in the contractual relationship between plaintiffs and defendant, or in the assertion that defendant was standing in loco parentis, or in our prior decisions in Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590, and Lando v. State of New York, 39 N.Y.2d 803, 385 N.Y.S.2d 759, 351 N.E.2d 426.

There is no foundation for the alleged duty in the contractual relationship between plaintiffs and defendant, wherein plaintiffs agreed to compensate defendant for services rendered to their daughter. The general rule in contract cases is that "absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty." (Wehringer v. Standard Security Life Ins. Co., 57 N.Y.2d 757, 759, 454 N.Y.S.2d 984, 440 N.E.2d 1331.) Although some exceptions to this rule have been recognized, such as wrongful and abusive ejection by a hotel or innkeeper (Boyce v. Greely Sq. Hotel Co., 228 N.Y. 106, 126 N.E. 647; DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527), indignant expulsion or removal from a public facility (Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736; Smith v. Leo, 92 Hun. 242), or ejection by a common carrier (Gillespie v. Brooklyn Hgts. R.R. Co., 178 N.Y. 347, 70 N.E. 857; Hamilton v. Third Ave. R.R. Co., 53 N.Y. 25), they are not applicable here.

"In nearly every case where such damages have been awarded, the breach has been wilful; and in many of them the ejection of the plaintiff was accompanied by wanton conduct, such as foul language, abuse of the plaintiff, accusations of immorality, and special circumstances of humiliation and indignity. Where there were no such accompanying facts, damages for mental suffering have usually been refused." (5 Corbin, Contracts, § 1076, p. 432; see, also, 36 N.Y.Jur.2d, Damages, § 102; Restatement, Contracts 2d, § 353.) A similar contractual duty was suggested by the Appellate Division dissenter in Kalina v. General Hosp., 18 A.D.2d 757, 758, 235 N.Y.S.2d 808, supra ), but was not adopted by this court.

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